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In this issue:

News and Analysis

The Good, The Bad And The Ugly


Proposed Employee Free Choice Act (EFCA) Sparks Action – Reaction – EFCA, which was passed in the House last year, but was blocked by a filibuster in the Senate, would amend the National Labor Relations Act to require the NLRB to certify a union if a majority of employees signed union authorization cards and would mandate binding arbitration if the parties fail to reach a first contract within 120 days. As the November elections draw closer, both organized labor and management are increasing their efforts in support or opposition to the legislation.

• The U.S. Chamber has launched a multi-million dollar grassroots campaign and network to oppose EFCA which, according to the Chamber president, “completely changes the economics of union organizing” since “it would make it cost effective for unions to go after main street business, small retail establishments, and industries that have never experienced unionization

• Meanwhile, the SEIU’s political program calls for the expenditure of $150 million and the mobilization of tens of thousands of members to elect a “pro-worker” President and enough members of the Senate to have the votes to pass EFCA. According to SEIU offi cials, with the enactment of EFCA the union would be able to organize a million or more workers a year, compared to the 100,000 a year the union claims it is currently organizing.

Union Button Not Disturbing – While restrictions on union buttons or insignia outside a hospital’s immediate patient care areas are presumptively invalid, the Supreme Court has ruled that special circumstances may justify restrictions on insignia if “necessary to avoid disruption of health-care operations or disturbance of patients.” In Washington State Nurses Ass’n v. NLRB, 526 F.3d 577 (9th Cir. 2008), the NLRB ruled that “special circumstances” did allow Sacred Heart Medical Center to prevent its nurses from wearing buttons that read “RN’s Demand Safe Staffing.” The Board concluded that a reasonable person would construe the “Safe Staffing” button as a claim that the hospital’s staffing levels are unsafe and that such a claim is likely to cause unease and worry among patients and their families and disturb the tranquil hospital atmosphere necessary for successful patient care. The Court of Appeals rejected the Board’s finding. Calling the Board’s assertion “speculative at best,” the court noted that there was no evidence of any actual disturbance occurring, even though nurses wore the button for several months before it was banned. The hospital had offered only speculation about the potential effects of the button with no supporting evidence that similar buttons had ever before caused a disturbance among patients. The court concluded, “Evidence of what actually occurred is far more telling than unsubstantiated conjecture about what might occur.”

Where Objective Evidence Supports Loss Of Majority Status, The Employer Prevails Absent Rebuttal Evidence By General Counsel – In Levitz Furniture Co. of Pac., 333 NLRB 717 (2001), the NLRB held that an employer must present objective evidence that a majority of the unit employees no longer support the union before the employer can withdraw recognition from the union. Recently, in NLRB v. Mullican Lumber & Mfg. Co., the employer withdrew recognition based upon the unsolicited employee statements to the plant manager from four employees that the union had lost its majority support, statements that only four or five employees were attending union meetings, and a letter from the employee who had prepared and filed a decertification petition 8 months earlier stating that 114 of 220 employees had signed the decertification slips filed with the NLRB. At the unfair labor practice hearing, the Board’s general counsel did not present rebuttal evidence or make any arguments challenging the evidence presented by the employer. Nevertheless, the ALJ found that the employer illegally withdrew recognition because the oral statements from employees were hearsay and the statement in the employee’s letter did not prove that a majority of unit employees at the time the company withdrew recognition did not support the union. The NLRB summarily adopted the ALJ’s findings and ordered the company to recognize and bargain with the union. The 4th Circuit Court of Appeals, however, reversed the Board’s ruling, stating that the type of information the employer had about the union’s loss of support “meets the ‘objective’ requirement” under Levitz. According to the Court, a footnote in the NLRB’s Levitz decision makes it clear that if the general counsel does not come forward with evidence rebutting the employer’s evidence, the employer should ordinarily prevail. Since at the ALJ hearing the general counsel did not present any rebuttal evidence, nor make any arguments calling into question the evidence presented by the employer, the withdrawal of recognition was proper.

More E-mails From The NLRB – As discussed in a previous Executive Labor Summary, in Register-Guard, the NLRB found that an employer did not violate Section 8(a)(1) of the Act by maintaining a policy prohibiting the use of its e-mail system for all “non-job related solicitations.” The Board majority ruled that an employer’s e-mail system is company property and that employees have no statutory right to use it for Section 7 purposes. Recently, the NLRB General Counsel discussed three cases in which the Division of Advice has interpreted the Register-Guard decision.

  • An employer policy barring union officials from using its e-mail system to distribute messages broadly to company managers outside the facility where the union represented employees was found lawful. The company did allow the union to use its e-mail system to conduct union business and to communicate with the employer about labor relations matters at the facility. The rule was lawful because it covered how the union could use the system, but did not prohibit the union from engaging in protected communications outside the plant or to broad groups of managers.
  • An unfair labor practice complaint was issued where a health care employer disparately enforced a policy prohibiting non-business e-mail use. The Board’s investigation showed the employer disciplined an employee who, during work time, sent e-mails inviting other employees to an off-site union organizing meeting, but did not discipline employees who sent e-mails during work time regarding party invitations and solicitations to buy products.
  • A complaint was issued against an employer that fired an employee who sent e-mails on behalf of workers seeking support of management to address certain working conditions. The employer’s policy permitted reasonable personal use of the e-mail system. According to the general counsel, the employer did not draw a meaningful distinction between employee e-mails that it allows (such as jokes, baby announcements, and offers of sports tickets) and those it prohibits. The general counsel also found the e-mails were not solicitations because they did not call for employees to take action in support of an outside cause, but were instead job related direct communications to management seeking improved working conditions


Not At My House!: A federal court in New Jersey ruled an employer was entitled to a permanent injunction prohibiting union members from gathering at the home of the company president to publicize their dispute over failure to reach an agreement on terms related to closing a terminal. Agreeing that states have a legitimate interest in protecting the privacy of individuals in their homes, the court found that the labor dispute did not justify demonstrating at a home in a residential area over 60 miles from the terminal. According to the judge, the picketing of the residence seeks only to add pressure on the president’s decision-making, stemming from the apprehensions of his wife and children and harassment to his family and neighbors.

Owner Personally Liable For Back Pay: The 8th Circuit Court of Appeals has agreed with the NLRB that an owner of four interrelated corporations is personally liable for back pay owed to five employees fired from one of the operations for supporting union representation. In NLRB v. Bolivar-Tees, Inc., the court found that the owner and the four companies failed to maintain separate identities. The owner controlled, owned and directed the decision-making of each company; he and the companies commingled funds, failed to maintain adequate records, disregarded legal formalities and did not maintain an arm’s-length relationship. The owner also transferred the assets of one company to avoid its legal obligations to the five discriminatees. According to the court, there was such unity of interest and lack of respect for the separate identities of each company that the owner should be personally liable.

Labor Board Rolls Along With Only Two Members: Despite having only two out of five members, the Board’s inventory of cases actually declined during the five months of 2008. The two Board members can now meet together to hear cases and immediately discuss how to decide them. They are following long-standing Board policy not to make new law or set new rules without at least a three-member majority voting for change. The three vacancies may not be filled until the next President takes office because the Senate has been blocking President Bush from making short-term recess appointments.

There are currently six cases pending in the federal courts that challenge the legality of just two members issuing decisions.

SEIU Update: As reported in our last issue, the SEIU hoped to resolve both the internal dispute between two California locals and its raiding war with the California Nurses Association (CNA) at its June convention. The convention did adopt a resolution calling for the SEIU to work with other health care unions committed to the principle of “no raiding” to develop a “coordinated strategy for organizing health care workers.” After heated debate, the convention delegates voted to require all long-term care members of SEIU in each state to be unified in the same local union. To date, there has been no decision on how to unite the long-term care workers in California. Considering their past differences, uniting the SEIU locals in California is easier said than done.

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